Reviewing Your Prenuptial Agreement
A prenuptial agreement is a written contract entered into by a couple before marriage to establish their rights in the event of a death or divorce. The validity of such agreements depends on state law. It is advisable to sign a prenuptial agreement only if you are sure that you have plenty of time to read and understand it, you know what assets your soon-to-be spouse has (and vice versa), and you have your own attorney review the document.
You Can Do It!
If you didn't have an attorney, you were unaware of your spouse's assets or liabilities, you did not understand the agreement, you were tricked into signing it, or you signed it very close to your wedding day, you might convince a judge to throw out the prenup.
If you and your spouse signed a prenuptial agreement, this is the time to pull it out. You might be surprised to read what the two of you signed in the throes of new love.
Prenups, as lawyers call them, used to be popular mostly with older people who were marrying for the second time and wanted to protect the inheritance rights of their children in the event they died. However, provisions for what would happen in the event the parties divorced began to pop up, and now, young people marrying for the first time often inquire about having a prenup. Some stand to inherit money from parents, and the parents want the prenup. Others are wealthy in their own right and have heard so many divorce horror stories that they want to protect their assets.
If you signed a properly executed prenup or post-nuptial agreement (an agreement entered into after your marriage), there is little to discuss if the marriage fails. Judges will generally uphold the terms of the prenup with a couple of exceptions. In general, judges will not uphold provisions in a pre-nuptial agreement stating who is to have custody of children and how much child support is to be paid. The care and support of children is usually subject to court review. In addition, judges will not support your agreement if you can prove it was the product of fraud, coercion, distress, or some other unfairness the laws of your state allow you to assert.
What, exactly, will a judge consider unfair? Did you each have your own attorney when you signed the agreement? Did you each reveal how much money, assets, and debts you had before you signed the agreement? How close to your wedding date was the agreement signed? (Signing it on the day before might be construed as undue pressure.) Did you understand the agreement? Is it so unfair to one party that a court won't enforce it? Were you tricked into signing it? If you can prove any of these unfavorable conditions existed, a judge might invalidate the prenuptial agreement.
More on: Dealing With Divorce
Excerpted from The Complete Idiot's Guide to Surviving Divorce © 2002 by BookEnds, LLC. All rights reserved including the right of reproduction in whole or in part in any form. Used by arrangement with Alpha Books, a member of Penguin Group (USA) Inc.
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